Flattery or Fraud: Should Fashion Designs Be Granted Copyright Protection?

• Publication year: 2006

Jennifer E. Smith⁰

I. Introduction

While copying books or music can result in a hefty fine,¹ copying a fashion design is legal. Copying in the fashion industry is commonplace. However, fashion copycats could find themselves in trouble if Congress passes the bill sponsored by Representative Bob Goodlatte. H.R. 5055, which was introduced on March 30, 2006, would amend the Copyright Act to provide fashion designs a three-year period of copyright protection.²

Although Rep. Goodlatte is motivated by noble intentions, H.R. 5055 is not an adequate solution. Not only would H.R. 5055 fail to alleviate the problems that prompted it, the bill would also have several negative consequences. The legislation is flawed on three levels. First, it is an improper extension of copyright protection that contravenes the basic principles of copyright. Second, the European model of copyright protection for fashion designs, with which H.R. 5055 seeks alignment, would not translate well into the American context and would increase litigation. Third, H.R. 5055 would have a negative impact on the majority of people it affects.

II. Copyright Law and H.R. 5055: A Mismatch

H.R. 5055 contravenes the basic principles of copyright law in several ways. First, providing copyright protection for fashion designs undermines a fundamental principal of copyright, namely that fundamental concepts cannot be copyrighted. The Copyright Act does not protect any "idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."³

Copyright protection is particularly counterproductive in the context of fashion design because it would result in the monopolization of an idea.⁴ For example, if the designer who created the wrap dress was granted copyright protection, no other designer could create a wrap-inspired dress because copyright protects not only against exact replication, but also derivative works.⁵ As a result, a designer would be guilty of infringement if the court determines that one garment was similar to another copyrighted article.⁶ In fashion, imitation and derivation are the foundation of the creative process.

The second major reason to refuse copyright protection for fashion designs is that clothes are useful articles. While some designs are highly ornamental, garments serve the utilitarian purpose of covering our bodies. Protection for useful articles is generally associated with patents, not copyrights. The Copyright Act provides that "[a] 'useful article' is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a 'useful article.'"⁷ However, under the "separability doctrine," some aspects of useful articles may be copyrighted.⁸ To achieve copyrightable status,

the design of a useful article . . . shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from and are capable of existing independently of, the utilitarian aspects of the article.⁹

Under this approach, copyrights have been granted to lamps with Balinese dancer statuette bases,¹⁰ distinctive belt buckles,¹¹ and Halloween "nose masks" in the shape of animal noses.¹² Therefore while aspects of a fashion design may be copyrighted, the piece as a whole cannot because of its utility.

III. European and American Copyright System: One Size Does Not Fit All

H.R. 5055's supporters stress the importance of harmonizing U.S. copyright protection with that of foreign countries, specifically the European Union. However, according to University of Virginia law professor Chris Sprigman, the European Union regulation granting copyright protection is largely unused.¹³ According to Sprigman, between January 1, 2004, and November 1, 2005, 1,631 garments were registered in the European Union, the majority of which were for "plain T-shirts, jerseys, [and] sweatshirts with either fixed trademarks or pictorial works."¹⁴ In the United States, these designs would be protected under trademark law, but would receive the added protection of copyright under H.R. 5055.¹⁵

While the European Union has only recently given copyright protection to fashion designs, it is not a novel concept. On the contrary, France has afforded copyright protection to clothing as applied art since 1793.¹⁶ The crucial difference, however, is that French law does not require the element of originality for fashion designs.¹⁷ In the United States, originality is the "touchstone" requirement of copyrightability.¹⁸ The difficulty in distinguishing between a design that copies an original, versus one that was inspired by the same idea, is particularly relevant because the proposed legislation requires that "a court and not the Copyright Office settle disputes over registration of designs . . . ."¹⁹ In an industry in which new designs are often said to be "inspired by" looks from other periods, determining originality for purposes of copyright protection is...